Citation Nr: 1404407
Decision Date: 01/31/14 Archive Date: 02/10/14
DOCKET NO. 11-08 291 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada
THE ISSUE
Entitlement to dependency and indemnity compensation (DIC) for the cause of the Veteran's death.
REPRESENTATION
Appellant represented by: Katrina J. Eagle, Attorney
ATTORNEY FOR THE BOARD
Rutkin, Joshua M.
INTRODUCTION
The Veteran served on active duty from April 1967 to April 1969. He died in April 2009. The appellant is his surviving spouse.
This appeal before the Board of Veterans' Appeals (Board) originates from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Reno, Nevada RO currently has jurisdiction of this case.
FINDINGS OF FACT
1. The Veteran's colon cancer was incurred in active service by exposure to herbicides such as Agent Orange.
2. Colon cancer was the principal cause of the Veteran's death in April 2009.
CONCLUSION OF LAW
The criteria for entitlement to DIC benefits for the cause of the Veteran's death are satisfied. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
When a veteran dies of a service-connected disability, the veteran's surviving spouse is eligible for DIC benefits for the cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or contributed substantially and materially to the veteran's death. 38 C.F.R. § 3.312. Service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established.
Service connection means that a disability resulting from disease or injury was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a).
The Veteran died in April 2009 of colon cancer, as reflected in the Certificate of Death. His service personnel records show that he served on land in Vietnam during the Vietnam Era, and thus he is presumed to have been exposed to an herbicide agent. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(iii). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam Era. 38 C.F.R. § 3.307(a)(6).
Certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2013). However, colon cancer is not among the diseases eligible for presumptive service connection under section 3.309(e). See id. Thus, service connection for colon cancer on a presumptive basis due to the Veteran's herbicide exposure is not warranted. See id. Nevertheless, service connection for colon cancer may still be established with proof of direct causation. See McCartt v. West, 12 Vet. App. 164, 167 (1999); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
Here, a May 2012 report by J. Magdade, M.D., a physician in private practice who is Board certified in internal medicine, endocrinology, and metabolism, supports a relationship between the Veteran's colon cancer and his exposure to herbicide agents while serving in Vietnam. In the report, Dr. Magdade opined that it was more likely than not that the Veteran's colon cancer was related to such exposure. The physician explained that the pathogenic process by which a chemical component in Agent Orange, dioxin, compromises the cells and causes cancer development affects the same cell receptor (aryl hydrocarbon or AHR) and tumor suppressor gene (AHRR) involved in cancer of the colon that is involved in the carcinogenic pathways leading to cancers of the lung, larynx, trachea, and bronchus. Cancer of the latter sites is officially recognized by VA as associated with Agent Orange based on statistical analyses conducted by the National Academy of Sciences (NAS). See, e.g., Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924,47,925 (Aug. 10, 2012); see also 38 C.F.R. § 3.303(e). Thus, because scientific evidence indicated that the same "signaling pathways [AHR/AHRR] common to these other . . . cancers have also been demonstrated to be active and operative in tissue from individuals with colon cancer," the physician found it more likely than not that the Veteran's colon cancer was caused by Agent Orange exposure. The physician supported his findings with specific citations to a number of medical and scientific studies.
The May 2012 opinion is highly probative as it is authored by a physician with relevant expertise and is supported by a clear, if somewhat complex, explanation based on his review and interpretation of a number of medical and scientific studies.
Importantly, while the Secretary of VA (Secretary) has concluded that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted, this conclusion is based solely on statistical analyses conducted by NAS. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924, 47,925 (Aug. 10, 2012) (hereinafter "Update"); see also Notice on Health Outcomes Not Associated With Exposure to Certain Herbicide Agents (hereinafter "Notice"), 75 Fed. Reg. 81332, 81333 (December 27, 2010); Notice, 72 Fed. Reg., 32395, 32407 (June 12, 2007). These statistical analyses derived from population studies-and the Secretary's determinations as to whether a presumption for a given disease should be established based on NAS's reports-do not rule out the possibility of service connection based on direct scientific evidence. See Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) ("To permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection."). Indeed, the Secretary's Update and prior Notices specifically state that a determination that a positive association does not exist between a given disease and Agent Orange exposure does not preclude VA from granting service connection for any such disease if the evidence otherwise supports service connection. See Update, 77 Fed. Reg. at 47924.
In this light, a January 2011 VA opinion finding against a relationship between the Veteran's herbicide exposure and later development of colon cancer lacks probative value as it was based exclusively on the NAS findings and Secretary's reports discussed above finding against a statistical association between colon cancer and herbicide exposure. See Polovick, 23 Vet. App. at 55 (finding that the Board did not provide adequate reasons or bases for relying on an opinion that found against a relationship between the Veteran's cancer and Agent Orange exposure merely because the NAS reports did not support a statistical association).
Accordingly, the May 2012 private opinion outweighs the January 2011 VA opinion. Moreover, there is no evidence that the Veteran's colon cancer may have a different cause, and the Veteran denied a family history of colon cancer in an August 2008 statement. There is also a March 2009 opinion by a Dr. Keech, Jr., the Veteran's treating oncologist, which also supports a relationship between colon cancer and the chemical components of Agent Orange based on a review of relevant medical studies. Thus, the evidence is at least in equipoise as to whether his colon cancer was caused by Agent Orange exposure. See 38 C.F.R. § 3.102.
With regard to entitlement to DIC benefits for the cause of death, the evidence shows that colon cancer was the principal cause of death. Because the Veteran's colon cancer was incurred in active service by exposure to herbicides, and because this disease was the principal cause of death, the appellant is entitled to DIC benefits.
As this claim has been granted, any questions as to whether VA has satisfied its duties to notify and assist are moot. See Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010) (observing that an error that does not affect the outcome of a case is not prejudicial); Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009); see also 38 C.F.R. § 3.159 (2013).
ORDER
Entitlement to dependency and indemnity compensation for the cause of the Veteran's death is granted.
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P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs